STATUTORY INSTRUMENTS

STATUTORY INSTRUMENTS.

S.I. No. 208 of 2012

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EMPLOYMENT EQUALITY ACT 1998 (CODE OF PRACTICE)(HARASSMENT) ORDER 2012

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S.I. No. 208 of 2012

EMPLOYMENT EQUALITY ACT 1998 (CODE OF PRACTICE)(HARASSMENT) ORDER 2012

I, ALAN SHATTER, Minister for Justice and Equality, in exercise of thepowers conferred on me by sections 56(3)(a) and 56(5) of the EmploymentEquality Act 1998 (No. 21 of 1998) (as adapted by the Justice and Law Reform(Alteration of Name of Department and Title of Minister) Order 2011 (S.I. No.138 of 2011)), hereby order as follows:

1. This Order may be cited as the Employment Equality Act 1998 (Code ofPractice) (Harassment) Order 2012.

2. The code of practice, which was prepared by the Authority and submittedto me, the text of which is set out in the Schedule to this Order, is declared tobe an approved code of practice for the purposes of the Employment EqualityAct 1998 (No. 21 of 1998).

3. The code of practice, declared to be an approved code of practice in Article2 of the Employment Equality Act 1998 (Code of Practice) (Harassment) Order2002 (S.I. No. 78 of 2002), the text of which is set out in the Schedule to thatOrder, is revoked.

4. The Employment Equality Act 1998 (Code of Practice) (Harassment)Order 2002 is revoked.

Notice of the making of this Statutory Instrument was published in“Iris Oifigiúil” of 19th June, 2012.

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SCHEDULE

CODE OF PRACTICE ON SEXUAL HARASSMENT ANDHARASSMENT AT WORK

S39 Employment The functions of the Equality Authority underEquality Act the Employment Equality Act 1998 and theS39 Equal Status Act. Equal Status Act 2000 include:

— Working towards the elimination ofdiscrimination in employment and inrelation to matters to which the Equal StatusAct applies

— The promotion of equality of opportunity

— The provision of information on the workingof both Acts

— Keeping under review the working of theEmployment Equality Act and the EqualStatus Act and whenever necessary to makeproposals to the Minister for Justice andEquality for the amendment of those Acts.

Certain provisions in the Employment EqualityAct 1998 and the Equal Status Act 2000 wereamended by the Equality Act 2004.

References in this code to the EmploymentEquality Act mean to the Employment EqualityActs 1998 to 2011. References to the Equal StatusAct mean to the Equal Status Acts 2000 to 2011.

References to the relevant sections of these Actsare given in the margins.

S56 Employment Within these functions the Equality AuthorityEquality Act may prepare codes of practice in furtherance of

the elimination of discrimination and theParagraph (g) of the promotion of equality of opportunity. SectionSchedule to the Equal 56(4) of the Employment Equality Act asStatus Act. amended by paragraph (g) of the Schedule to the

Equal Status Act provides that:

‘An approved code of practice shall be admissiblein evidence and, if any provision of the codeappears to be relevant to any question arising inany criminal or other proceedings, it shall be

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taken into account in determining that question;and for this purpose “proceedings” includes, inaddition to proceedings before a court and underPart VII or under Part III of the Equal StatusAct 2000, proceedings before the Labour Court,the Labour Relations Commission, theEmployment Appeals Tribunal, the EqualityTribunal and a rights commissioner’.

What follows is a code of practice within themeaning of section 56(1) and (4) of theEmployment Equality Act as amended byparagraph (g) of the Equal Status Act.

The impact of sexual PART 1: Forewordharassment andharassment. Sexual harassment, and harassment on the eight

other non-gender discriminatory grounds, pollutethe working environment and can have adevastating effect on the health, confidence,morale and performance of those affected by it.The anxiety and stress produced by sexualharassment and harassment may lead to thosesubjected to it taking time off work due tosickness and stress, being less efficient at work orleaving their job to seek work elsewhere.Employees often suffer the adverse consequencesof the harassment itself and, in addition, the shortand long term damage to their employmentprospects if they are forced to forego promotionor to change jobs. Sexual harassment andharassment may also have a damaging impact onemployees not themselves the object of unwantedbehaviour but who are witness to it or have aknowledge of the unwanted behaviour.

There are also adverse consequences arising fromsexual harassment and harassment for employers.It has a direct impact on the profitability of theenterprise where staff take sick leave or resigntheir posts because of sexual harassment orharassment. It can also have an impact on theeconomic efficiency of the enterprise whereemployees’ productivity is reduced by having towork in a climate in which the individual’sintegrity is not respected.

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Some specific groups are particularly vulnerableto sexual harassment and harassment as theremay be a link between the risk of sexualharassment or harassment and an employee’sperceived vulnerability — such as might be thecase with new entrants to the labour market,those with irregular or precarious employmentcontracts and employees in non-traditional jobs.

PART 2: Introduction

This code has been prepared by the EqualityAuthority with the approval of the Minister forJustice and Equality and after consultation withIBEC, ICTU and other relevant organisationsrepresenting equality interests.

Aim. This code aims to give practical guidance toemployers, employers’ organisations, trade unionsand employees on:

— what is meant by sexual harassment andharassment in the workplace

— how it may be prevented

— what steps to take if it does occur to ensurethat adequate procedures are readilyavailable to deal with the problem and toprevent its recurrence.

Status. The code thus seeks to promote the developmentand implementation of policies and procedureswhich establish working environments free ofsexual harassment and harassment and in whichthe dignity of everyone is respected.

The provisions of this code are admissible inevidence and if relevant may be taken intoaccount in any criminal or other proceedingsbefore a court and under Part VII of theEmployment Equality Act, and also inproceedings before the Labour Court, the LabourRelations Commission, the Employment AppealsTribunal, the Equality Tribunal and a rightscommissioner.

This code does not impose any legal obligationsin itself, nor is it an authoritative statement of thelaw — that can only be provided by the Equality

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Tribunal, the Labour Court and the courts. It isthe employer’s responsibility to ensurecompliance with the Employment Equality Actsand European equality law.

Application and The code is intended to be applicable to alladaptation of the code. employments, employment agencies and trade

unions, employer bodies and professional bodiesthat are covered by the Employment EqualityAct. Employers are encouraged to follow therecommendations in a way which is appropriateto the size and structure of their organisation. Itmay be relevant for small and medium sizedenterprises to adapt some of the practical steps totheir specific needs. Any adaptations that aremade however, should be fully consistent with thecode’s general intention.

An employer is legally responsible for the sexualharassment and harassment suffered byemployees in the course of their work unlesshe/she took reasonably practicable steps toprevent sexual harassment and harassment fromoccurring, to reverse the effects of it and toprevent its recurrence. Employers who take thesteps set out in the code to prevent sexualharassment or harassment, to reverse the effectsof it and to prevent its recurrence, may avoidliability for such acts in any legal proceedingsbrought against them.

It is essential that employers have in placeaccessible and effective policies and procedures todeal with sexual harassment and harassment.These measures should be agreed by theemployers with the relevant trade union oremployee representatives. In so far as practicable,clients, customers and business contacts shouldalso be consulted.

Equality of opportunity. A policy on sexual harassment and harassment atwork is an integral part of equal opportunitiesstrategies in the workplace. Such policies will bemore effective when operated in conjunction withsimilar policies on equal opportunities and healthand safety.

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The Law and PART 3: Employment Equality Act 1998Employers’Responsibilities: S8 The Employment Equality Act prohibitsEmployment Equality discrimination on nine specific grounds in allAct. aspects of a person’s employment, including:

— Access to employment

— Conditions of employment

— Training or experience

— Promotion or regrading

— Classification of posts

— Vocational training

— Equal pay

— (It may also apply in certain circumstanceswhen the relationship has ended, forexample to references).

The Act applies to employers, employmentagencies, trade unions, employer bodies andprofessional and trade organisations.

Discriminatory grounds. An employer must not treat an employee lessfavourably because of their:

Gender — man, woman, (this also includestransgender).

Civil Status — single, married, separated,divorced, widowed, in a civil partnership withinthe meaning of the Civil Partnership and CertainRights and Obligations of Cohabitants Act 2010or being a former civil partner in a civilpartnership that has ended by death or beendissolved.

Family Status — responsibility as a parent or as aperson in loco parentis in relation to a personunder 18, or as a parent or the resident primarycarer of a person over 18 with a disability whichis of such a nature as to give rise to the need forcare or support on a continuing, regular orfrequent basis.

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Sexual Orientation — heterosexual, bisexual orhomosexual.

Disability — this is very broadly defined insection 2(1) of the Employment Equality Act andincludes most disabilities.

“Disability” means—

(a) the total or partial absence of a person’sbodily or mental functions, including theabsence of a part of a person’s body,

(b) the presence in the body of organismscausing, or likely to cause, chronic diseaseor illness,

(c) the malfunction, malformation ordisfigurement of a part of a person’s body,

(d) a condition or malfunction which results ina person learning differently from a personwithout the condition or malfunction, or

(e) a condition, disease or illness which affectsa person’s thought processes, perception ofreality, emotions or judgment or whichresults in disturbed behaviour, and includesa disability which exists at present, or whichpreviously existed but no longer exists, orwhich may exist in the future or which isimputed to a person.

Age — the protection against age-relateddiscrimination (including harassment) inemployment applies only to employees over themaximum age at which a person is statutorilyobliged to attend school. The minimum schoolleaving age is currently 16 years, or thecompletion of three years of post-primaryeducation, whichever is the later.

Race — race, colour, nationality or ethnic ornational origins.

Religious Belief — includes different religiousbackground or outlook, (including absence ofreligious belief).

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Membership of the Traveller Community —“Traveller community” means the community ofpeople who are commonly called Travellers andwho are identified (both by themselves andothers) as people with a shared history, cultureand traditions including, historically, a nomadicway of life on the island of Ireland.

Reasonable Employers have obligations to reasonablyaccommodation: S16 accommodate employees with disabilities (unlessEmployment Equality such measures would impose a disproportionateAct. burden). This obligation should be taken account

of in the format and content of any policies orprocedures on sexual harassment and harassment,and in their implementation.

Victimisation: S74(2) The Employment Equality Act protectsEmployment Equality employees who, for example, seek redress underAct. the Act, support a complainant, or give evidence

in proceedings, by prohibiting their beingvictimised by dismissal or other penalty for doingso.

Harassment and sexual The Employment Equality Act protectsharassment. employees from employment-related sexual

harassment and harassment. It distinguishesbetween sexual harassment (sexual or gender-based) and harassment based on one or more ofthe other grounds.

Harassment, sexual Harassment that is based on the followingharassment and grounds — civil status, family status, sexualdiscrimination: S14A(1) orientation, religion, age, disability, race, or theEmployment Traveller community ground — is a form ofEquality Act. discrimination in relation to conditions of

employment.

Sexual harassment is a form of discrimination onthe gender ground in relation to conditions ofemployment.

What is harassment- Harassment is defined in section 14A(7) of theS14A(7) Employment Employment Equality Act as any form ofEquality Act. unwanted conduct related to any of the

discriminatory grounds which has the purpose oreffect of violating a person’s dignity and creatingan intimidating, hostile, degrading, humiliating oroffensive environment for the person. Bullyingthat is not linked to one of the discriminatory

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grounds is not covered by the EmploymentEquality Act.

The protection of the Act extends to situationswhere the employee does not have the relevantcharacteristic related to the discriminatory groundbut the perpetrator believes that he/she has thatcharacteristic, for example, if the perpetratorbelieves the employee is gay and the employee isnot.

Many forms of behaviour, including spokenwords, gestures or the display/circulation ofwords, pictures or other material, may constituteharassment. A single incident may constituteharassment. The following list of examples isillustrative rather than exhaustive:

— Verbal harassment – jokes, comments,ridicule or songs

— Written harassment – including faxes, textmessages, emails or notices

— Physical harassment – jostling, shoving orany form of assault

— Intimidatory harassment – gestures,posturing or threatening poses

— Visual displays such as posters, emblems orbadges

— Excessive monitoring of work

— Isolation or exclusion from social activities

— Unreasonably changing a person’s jobcontent or targets

— Pressure to behave in a manner that theemployee thinks is inappropriate, forexample being required to dress in a mannerunsuited to a person’s ethnic or religiousbackground.

What is sexual Sexual harassment is defined in section 14A(7) ofharassment- S14A(7) the Employment Equality Act as any form ofEmployment Equality unwanted verbal, non-verbal or physical conductAct.

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of a sexual nature which has the purpose or effectof violating a person’s dignity and creating anintimidating, hostile, degrading, humiliating oroffensive environment for the person.

Many forms of behaviour can constitute sexualharassment. It includes examples like thosecontained in the following list although it must beemphasised that the list is illustrative rather thanexhaustive. A single incident may constitutesexual harassment.

Physical conduct of a sexual nature — This mayinclude unwanted physical contact such asunnecessary touching, patting or pinching orbrushing against another employee’s body, assaultand coercive sexual intercourse.

Verbal conduct of a sexual nature — This includesunwelcome sexual advances, propositions orpressure for sexual activity, continued suggestionsfor social activity outside the work place after ithas been made clear that such suggestions areunwelcome, unwanted or offensive flirtations,suggestive remarks, innuendos or lewd comments.

Non-verbal conduct of a sexual nature — Thismay include the display of pornographic orsexually suggestive pictures, objects, writtenmaterials, emails, text-messages or faxes. It mayalso include leering, whistling or making sexuallysuggestive gestures.

Gender-based conduct — This includes conductthat denigrates or ridicules or is intimidatory orphysically abusive of an employee because of hisor her sex such as derogatory or degrading abuseor insults which are gender-related.

Unwelcome conduct. The Employment Equality Act does not prohibitall relations of a sexual or social nature at work.To constitute sexual harassment or harassmentthe behaviour complained of must firstly beunwelcome. It is up to each employee to decide(a) what behaviour is unwelcome, irrespective ofthe attitude of others to the matter and (b) fromwhom, if anybody, such behaviour is welcome orunwelcome, irrespective of the attitudes of others

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to the matter. The fact that an individual haspreviously agreed to the behaviour does not stophim/her from deciding that it has becomeunwelcome. It is the unwanted nature of theconduct which distinguishes sexual harassmentand harassment from behaviour which is welcomeand mutual.

Violation of dignity. In addition, to constitute sexual harassment orharassment under the Employment Equality Actthe behaviour must have the purpose or effect ofviolating a person’s dignity and creating anintimidating, hostile, degrading, humiliating oroffensive environment for that person.

Intention. The intention of the perpetrator of the sexualharassment or harassment is irrelevant. The factthat the perpetrator has no intention of sexuallyharassing or harassing the employee is nodefence. The effect of the behaviour on theemployee is what is relevant.

Sexual harassment and The Employment Equality Act protectsharassment by employees from sexual harassment andemployers, employees harassment by:and non-employees:S14A(1) and S14A(4) of — the employerthe EmploymentEquality Act. — fellow employees

— clients

— customers

— other business contacts including any personwith whom the employer might reasonablyexpect the employee to come into contact inthe workplace. This may include those whosupply or deliver goods/services to theemployer, maintenance and other types ofprofessional contractors, as well asvolunteers.

Non-workplace sexual The scope of the sexual harassment andharassment and harassment provisions extend beyond theharassment: S14A(1) workplace, for example to conferences andEmployment Equality training that occur outside the workplace. It mayAct. also extend to work-related social events.

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Different treatment The protection of the legislation extends tobecause of acceptance or circumstances in which, because he/she hasrejection of sexual rejected or accepted sexual harassment orharassment or harassment, an employee is treated differently inharassment: S14A(1) the workplace, for example in relation toand S14A(3) of the decisions concerning access to training, promotionEmployment Equality or salary.Act.

Employment Agencies The provisions on sexual harassment andand Vocational Training: harassment also apply to employment agenciesS14A(5) Employment and vocational training.Equality Act.

Obligations on The Employment Equality Act requiresEmployers: S14A(2) employers to act in a preventative and remedialEmployment Equality way.Act.

Defence of reasonably Employers are legally responsible for the sexualpracticable steps: harassment and harassment of employees carriedS14A(2) Employment out by co-employees, clients, customers or otherEquality Act. business contacts of the employer. It is a defence

for the employer to prove that he/she tookreasonably practicable steps to prevent:

— the employee from being harassed

— the employee from being treated differentlyin the workplace or in the course ofemployment and, if and so far as any suchtreatment has occurred, to reverse theeffects of it.

In order to rely on this defence employers mustshow that they have comprehensive, accessible,effective policies that focus on prevention, bestpractice and remedial action, and also accessibleeffective complaints procedures. The measurestaken to put the policies and procedures intopractice will also be taken into account by courtsand tribunals: employers will not be able to relyon an excellent policy if it has not beeneffectively implemented. The core elements of apolicy and complaints procedure are outlined inParts (4) and (5) of this code.

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Time limits and A complaint of sexual harassment or harassment,Remedies under S74-93 including complaints relating to dismissal inEmployment Equality circumstances amounting to discrimination orAct. victimisation, may be made to the Director of the

Equality Tribunal who may refer the complaint toan Equality Officer or, with the parties’agreement, for mediation.

In sexual harassment complaints (and all gender-based complaints) the employee may bypass theTribunal and refer the matter to the CircuitCourt.

A complaint must be made within 6 months ofthe alleged occurrence of sexual harassment orharassment or of the most recent occurrence ofsuch harassment. The time limit of six monthsmay be extended up to a maximum period of 12months where reasonable cause is shown.

The maximum that can be awarded by theEquality Tribunal, and the Labour Court onappeal, is 104 weeks pay or €40,000, whichever isthe greater. However, section 82(3) provides thatno enactment relating to the jurisdiction of theCircuit Court shall be taken to limit the amountof compensation which may be awarded by theCircuit Court.

The Equality Tribunal, Labour Court or theCircuit Court may order re-instatement or re-engagement.

S98 Employment To dismiss an employee for making a complaintEquality Act. of sexual harassment or harassment under the

Employment Equality Act in good faith is anoffence: an employer on conviction may beordered to pay a fine and compensation, or thecourt may order re-instatement or re-engagement.

Right to seek Prior to making a complaint under theinformation: S76 and Employment Equality Act an employee isS81 Employment entitled to seek “material information” from anEquality Act. employer about alleged acts of sexual harassment

or harassment, the employer’s failure to deal withthem or about relevant procedures. There is noobligation on the employer to provide theinformation, but the Circuit Court, the Equality

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Tribunal or the Labour Court, in subsequentproceedings, may draw such inferences as seemappropriate from the failure to supply theinformation.

PART 4: The Policy

Prevention is the best way to minimise sexualharassment and harassment in the workplace. Aneffective policy, and a strong commitment toimplementing it, is required. The purpose of aneffective policy is not simply to prevent unlawfulbehaviour but to encourage best practice and asafe and harmonious workplace where suchbehaviour is unlikely to occur. This policy islikely to be more effective when it is linked to abroader policy of promoting equality ofopportunity.

Employers should adopt, implement and monitora comprehensive, effective and accessible policyon sexual harassment and harassment.

Preparing the Policy. Strategies to create and maintain a workingenvironment in which the dignity of employees isrespected are most likely to be effective whenthey are jointly agreed. In this way, employersand other parties to the employment relationshipcan create an anti-harassment culture and share asense of responsibility for that culture.

The policy and complaints procedure should beadopted, where appropriate, in so far as ispracticable with clients, customers and otherbusiness contacts after consultation or negotiationwith trade union or employee representatives,where possible, over its content andimplementation.

Simple direct language should be used in thepolicy. It should be accessible to those withliteracy problems and those who may not speakfluent English.

Core Elements and (1) The policy should begin by declaring:Implementation Steps.

(a) the organisation’s commitment to ensuringthat the workplace is free from sexualharassment and harassment

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(b) that all employees have the right to betreated with dignity and respect

(c) that complaints by employees will betreated with fairness and sensitivity and inas confidential a manner as possible

(d) that sexual harassment and harassment byemployers, employees and non-employeessuch as clients, customers and businesscontacts will not be tolerated and couldlead to disciplinary action (in the case ofemployees) and other sanctions, forexample the suspension of contracts orservices, or exclusions from premises (inthe case of non-employees).

(2) Definitions and Scope

(a) the policy should set out definitions ofsexual harassment and harassment whichare simple, clear and practical;

(b) a non-exhaustive list of examples shouldbe provided;

(c) the policy should state that the protectionextends to:

— sexual harassment and harassment by co-workers, clients, customers and otherbusiness contacts

— beyond the workplace to conferences andtraining and may extend to work-relatedsocial events

— different treatment of an employeebecause he/she has rejected or acceptedthe sexual harassment or harassment

— employment agencies and vocationaltraining;

(d) the policy should emphasise that it is up tothe employee to decide what behaviour isunwelcome irrespective of the attitude ofothers to the matter;

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(e) the policy should state that employees who,for example, make a complaint, support acomplainant, or who give evidence inproceedings, will not be victimised.

(3) Allocation of responsibilities under the Act

The policy should state that management andothers in positions of authority have a particularresponsibility to ensure that sexual harassmentand harassment does not occur and thatcomplaints are addressed speedily. The policyshould state that in particular management will:

— provide good example by treating all in theworkplace with courtesy and respect

— promote awareness of the organisation’spolicy and complaints procedures

— be vigilant for signs of harassment and takeaction before a problem escalates

— respond sensitively to an employee whomakes a complaint of harassment

— explain the procedures to be followed if acomplaint of sexual harassment orharassment is made

— ensure that an alleged perpetrator is treatedfairly

— ensure that an employee making a complaintis not victimised for doing so

— monitor and follow up the situation after acomplaint is made so that sexual harassmentor harassment does not recur.

(4) Trade Unions

The policy should address the contribution to bemade by the trade union/s. Trade unions can playa role in the prevention of sexual harassment andharassment in the workplace through theirparticipation in the development andimplementation of policies and procedures,through their information and training services,and through the collective bargaining process.

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Trade unions may also play a role in providinginformation, advice and representation toemployees who have been sexually harassed orharassed, and to employees against whomallegations of sexual harassment and harassmenthave been made.

(5) Employees

The policy should make it clear that employeesmay contribute to achieving a harassment-freeenvironment through co-operating withmanagement and trade union strategies toeliminate sexual harassment and harassment, andthat sexual harassment and harassment byemployees constitutes misconduct and may leadto disciplinary action. The policy should alsoemphasise that employees must conductthemselves so as to respect the rights of others todignity in the workplace.

(6) Non-Employees

The policy should point out that sexualharassment and harassment by non-employeessuch as clients, customers and business contactswill not be tolerated and may lead, for example,to termination of contracts, suspension ofservices, exclusion from a premises or theimposition of other sanctions (as appropriate).

(7) Communication of Policy

The policy should include a commitment toeffective communication. It should becommunicated effectively to all those potentiallyaffected by it including management, employees,customers, clients and other business contacts,including those who supply and receive goods andservices. Effective means of communicating apolicy could include, for example, newsletters,training manuals, training courses, leaflets,websites, emails and notice boards.

To Employees

Employees, including those in management andall other positions of responsibility, should be

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made aware of the policy as part of any formalinduction process whereby new employeesbecome familiar with their job and their workingenvironment and rules and regulations that applysuch as health and safety.

Employers should consider a staff handbookwhere practicable to be distributed to allemployees as part of the induction process. Thishandbook will need to be updated regularly toreflect relevant changes.

To Non-Employees

There may be some practical difficulties inensuring that the policy is effectivelycommunicated to every relevant personparticularly where there is no ongoingrelationship. Summaries of policies should beprominently displayed. This may not be feasiblefor retail outlets or pubs: these shouldprominently display a short statement confirmingthe policy’s existence and the organisation’scommitment to it, making it clear that thecomplete policy is available.

The effective communication of the policy shouldbe easier where there is an ongoing relationshipwith clients and customers. This can be achievedby way of a combination of measures such as:

— leaflets summarising the policy beingprominently displayed where members ofthe public, clients, and customers attendsuch as receptions and waiting rooms

— including a leaflet or short written statementsummarising the policy in any of thecompany written material such asappropriate brochures etc.

— it may be appropriate for the contracts ofthe employer with clients, customers andother business contacts to provide thatsexual harassment or harassment ofemployees of the employer will constitute arepudiation of the contract and may be aground for the employer to treat thecontract as at an end.

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(8) Monitoring

The policy should include a commitment tomonitoring incidents of sexual harassment andharassment.

The only way an organisation can know whetherits policy and procedures are working is to keepcareful track of all complaints of sexualharassment and harassment and how they areresolved. This monitoring information should beused to evaluate the policy and procedures atregular intervals, with changes recommendedwhere appropriate.

(9) Training

The policy should include commitments totraining staff on issues of sexual harassment andharassment.

An important means of ensuring that sexualharassment or harassment does not occur isthrough the provision of training for managers,supervisors and all staff. This should happen forstaff at induction or through appropriateawareness-raising initiatives. Such training shouldaim to identify the factors which contribute to aworking environment free of sexual harassmentand harassment and to familiarise participantswith their responsibilities under the employer’spolicy and problems they are likely to encounter.This is considered especially important for thosemembers of staff responsible for implementingthe policy and processing complaints.

(10) Complaints Procedure

The policy should set out a complaints procedure.

It is essential for employers to attach to theirpolicy a detailed complaints procedure that willbe available to employees. Clients, customers andothers who interact regularly with theorganisation should be made aware of theemployees’ right to make a complaint and thatthey may be requested to participate in theprocess.

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(11) Reviews

The policy should include a commitment toreview on a regular basis in line with changes inthe law, relevant caselaw or other developments.A competent person should be designated toensure that monitoring, training and reviewsoccur.

PART 5: The Complaints Procedure

The development of clear and precise proceduresto deal with sexual harassment and harassmentonce it has occurred is of great importance. Theprocedure should ensure the resolution ofproblems in an effective and timely manner.Practical guidance for employees on how to dealwith sexual harassment and harassment will makeit more likely that these problems will be dealtwith at an early stage.

The following are core elements which arerelevant to any complaints procedure. They willneed to be adapted and expanded upon to reflectthe size and complexity of the employment.

Core Elements. (1) Plain language

The procedures should be set out clearly, step bystep, in plain language and, where appropriate, inrelevant languages and formats so that a personmaking a complaint knows what to do and who toapproach.

(2) Time limits

Time limits should be set for every stage of theinvestigation.

(3) Statutory rights

The procedure should make it clear that using thecomplaints procedure will not affect thecomplainant’s right to make a complaint underthe Employment Equality Act and should pointout the statutory time limits.

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(4) Victimisation

The complaints procedure should make clear thatan employee will not be victimised or subject tosanction, for example, for making a complaint ingood faith, supporting a complainant, givingevidence in proceedings, or by giving notice of anintention to do any of the foregoing.

The procedure should make clear that in thecourse of investigating the complaint theemployer will make no assumptions about theculpability of the alleged perpetrator.

(5) Sanctions

Employees should be informed that, in the eventof the complaint being upheld, the disciplinaryprocess will be invoked which may lead todisciplinary sanctions up to and includingdismissal. Non-employees should be informedthat, in the event of the complaint being upheld,appropriate sanctions may be imposed whichcould in particular circumstances includetermination of contract, suspension of service,exclusion from premises etc. as appropriate.

(6) Confidentiality

The procedure should make clear thatconfidentiality will be maintained throughout anyinvestigation to the greatest extent consistent withthe requirements of a fair investigation.

Resolving the problem Most of those who experience sexual harassmentinformally. or harassment simply want the harassment to

stop. The complaints procedure should providefor both informal and formal methods ofresolving problems.

The procedure should provide for a competentnamed person to be available to assist in theresolution of any problems through informalmeans and to provide information to bothemployees and non-employees on the procedureand on the policy in general.

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The employee who is being sexually harassed orharassed should object to the conduct where thisis practicable. The complaints procedure shouldprovide that employees should attempt to resolvethe problem informally in the first instance. Insome cases it may be possible and sufficient forthe employee to explain clearly to the personengaging in the unwanted conduct that thebehaviour in question is not welcome, that itoffends them or makes them uncomfortable, andthat it interferes with their work.

In circumstances where it is too difficult for anindividual to do this on his/her own, analternative approach would be to seek supportfrom, or for an initial approach to be made by, asympathetic friend, designated person or tradeunion representative.

The informal process could provide formediation.

Formal complaints The complaints procedure should also provide forprocedure. a formal complaints procedure where:

— the employee making the complaint wishesit to be treated formally or

— the alleged sexual harassment or harassmentis too serious to be treated under theinformal procedure or

— informal attempts at resolution have beenunsatisfactory or

— the sexual harassment or harassmentcontinues after the informal procedure hasbeen followed.

Investigation of the The procedure should provide that investigationcomplaint. of any complaint will be handled with fairness,

sensitivity and with due respect for the rights ofboth the complainant and the alleged perpetrator.The investigation should be, and be perceived as,independent and objective: to this end it isessential that the principles of natural justice beadhered to.

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Those carrying out the investigation should notbe connected with the allegation in any way. It ispreferable that at least two people shouldinvestigate a complaint but it is acknowledgedthat this may not always be practicable. Such aninvestigation team should have gender balanceand ideally should seek to ensure diversity acrossthe other eight grounds. All of those on theinvestigation team should have receivedappropriate training. Every effort should be madeto resolve the complaint speedily. Externalassistance may be necessary to deal withcomplaints in some circumstances so as to ensureimpartiality, objectivity and fairness in aninvestigation.

To ensure procedural fairness both thecomplainant and alleged perpetrator should beinformed of the following:

— what the formal procedure entails and therelevant time frame

— that both parties have the right to beaccompanied and/or represented, by arepresentative, trade union representative, afriend or colleague

— that the complaint should be in writing andthat the alleged perpetrator will be given fulldetails in writing of the nature of thecomplaint including written statements andany other documentation or evidenceincluding witness statements, interview notesor records of meetings held with thewitnesses

— that the alleged perpetrator will be giventime to consider the documentation and anopportunity to respond

— that confidentiality will be maintainedthroughout any investigation to the greatestextent consistent with the requirements of afair investigation

— that a written record will be kept of allmeetings and investigations

[208] 25

— that the investigation, having considered allof the evidence before it and therepresentations made to it, will produce awritten report to both parties outlining itsfindings and the reasons for its finaldecision

— if the complaint is upheld against anemployee the report will recommendwhether the organisation’s disciplinaryprocedure should be invoked

— if the complaint is upheld against a non-employee the report should recommendappropriate sanctions against the non-employee or his/her employer which couldextend where appropriate to:

• exclusion of the individual from premises

• suspension or termination of service

• suspension or termination of a supplyservice or other contract

• the report may also, or as an alternative,recommend other actions such as training,or more effective promotion of theorganisation’s policy on sexual harassmentand harassment.

— if a right of appeal exists both parties shouldbe informed of it and the time limits andprocedures involved

Both parties to a complaint should receivesupport (for example, counselling or otherintervention as appropriate) and regular reviewfollowing the investigation as the process is likelyto result in tension and disharmony between theparties, co-employees, teams, etc, at least in theshort-term.

It is the responsibility of the employer to providefor proper notifications regarding theinvestigation process and for a fair determinationof the complaint. What is required in anyparticular instance will depend on thecircumstances and/or complexity of the case andmay require the adaptation of the procedures.

26 [208]

Non-Employees. It is possible that if the person accused of sexualharassment or harassment is not an employee,he/she will not wish to participate in the formalprocedure, and it will not be possible to securetheir participation. Nonetheless a non-employeemust be kept informed of all developments andgiven an opportunity to respond to them. Theoutcome of the investigation and any potentialsanctions must also be explained to the non-employee and/or any person or company forwhom he/she works.

PART 6: Reasonable Accommodation

The content, form and implementation of thepolicy and procedures should be accessible to allwith adjustments made and steps taken to ensureaccessibility in particular for people withdisabilities. Examples would include thetranslation of policies and procedures into Brailleor large print formats or the availability ofsigners.

PART 7: Accessibility

Certain measures may be necessary to ensure theaccessibility of policies and procedures, forexample, the translation of policies andprocedures into languages other than English asappropriate or the provision of interpreters.

PART 8: Review of this Code

The Employment Equality Act has been inoperation since October 1999. As case law andother developments occur in the area of sexualharassment and harassment, it will be necessaryto further review and amend this code to reflectthese changes.

PART 9: Sources of Other Information andAdvice

Equality Authority, Clonmel Street, Dublin 2Tel: (01) 4173336 Lo-Call: 1890 245545e-mail: [email protected]; website: www.equality.ie

[208] 27

ICTU, 31/32 Parnell Square, Dublin 1Tel: (01) 8897777 website: www.ictu.ie

IBEC, 84/86 Lwr. Baggot Street, Dublin 2Tel: (01) 6601011 website: www.ibec.ie

Rape Crisis Centre, 70 Lower Leeson Street,Dublin 2Tel: (01) 6614911 (01) 6614564 (after 5.30 pm andweekends) Freefone: 1800 77 88 88

Labour Relations CommissionTom Johnson House, Haddington Road, Dublin 4Tel: (01) 6609662; website: www.lrc.ie

Health and Safety Authority, 10 Hogan Place,Dublin 2Tel: (01) 6147000; website: www.hsa.ie

National Disability Authority, 25 Clyde Road,Dublin 4Tel: (01) 6080400; website: www.nda.ie

The following codes of practice may also be ofassistance:

— Code of Practice for Employers andEmployees on the Prevention andResolution of Bullying at Work, 2007,prepared by the Health and SafetyAuthority;

— Code of Practice on Victimisation (S.I. No.139 of 2004) prepared by the LabourRelations Commission;

— Procedures for Addressing Bullying in theWorkplace (S.I. No. 17 of 2002) prepared bythe Labour Relations Commission;

— Code of Practice on Grievance andDisciplinary Procedures (S.I. No. 146 of2000) prepared by the Labour RelationsCommission;

— Code of Practice on Accessibility of PublicServices and Information Provided by PublicBodies, 2006, prepared by the NationalDisability Authority.

28 [208]

Appendix 1 — EU Developments

European Commission The European Commission’s code of practiceRecommendation: annexed to its Recommendation of 27thdefinition of sexual November, 1991 on the protection of the dignityharassment. of women and men at work (92/131/ EEC)

provides the following definition:

“Sexual harassment means unwanted conductof a sexual nature, or other conduct based onsex affecting the dignity of women and men atwork”.

Framework and “Race” Council Directive 2000/78/EC of 27th November,Directives: definitions of 2000 establishing a general framework for equalharassment. treatment in employment and occupation and

Council Directive 2000/43/EC of 29th June, 2000implementing the principle of equal treatmentbetween persons irrespective of racial or ethnicorigin, contain definitions of harassment referableto religion or belief, disability, age or sexualorientation (Framework Directive) and racial orethnic origin (“Race” Directive).

These Directives define harassment as follows:

“When unwanted conduct” (related tomembership of a particular group) (...........) takesplace with the purpose or effect of violating thedignity of a person and of creating anintimidating, hostile, degrading, humiliating oroffensive environment”.

Directive on the Directive 2006/54/EC of 5th July 2006 recast in aimplementation of the single text the main provisions in this area as wellprinciple of equal as including certain developments in the case lawopportunities and equal of the Court of Justice of the Europeantreatment of men and Communities. Article 2(1)(c) and (d) respectivelywomen in matters of define gender-based harassment and sexualemployment and harassment:occupation (recast)

(c) “harassment”: where unwanted conductrelated to the sex of a person occurs withthe purpose or effect of violating the dignityof a person, and of creating an intimidating,hostile, degrading, humiliating or offensiveenvironment;

[208] 29

(d) “sexual harassment”: where any form ofunwanted verbal, non-verbal or physicalconduct of a sexual nature occurs, with thepurpose or effect of violating the dignity ofa person, in particular when creating anintimidating, hostile, degrading, humiliatingor offensive environment.....’

GIVEN under my Official Seal,31 May 2012.

ALAN SHATTER,Minister for Justice and Equality.

30 [208]

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legalinterpretation.)

This Order declares that the Code of Practice set out in the Schedule to thisOrder is an approved code of practice for the purposes of the EmploymentEquality Act 1998. It reflects amendments to the Employment Equality Actssince 2002 and replaces the approved Code of Practice set out in the Scheduleto the Employment Equality Act 1998 (Code of practice) (Harassment) Order2002 (S.I. No. 78/2002), which is revoked by this Order.

BAILE ÁTHA CLIATHARNA FHOILSIÚ AG OIFIG AN tSOLÁTHAIR

Le ceannach díreach ónOIFIG DHÍOLTA FOILSEACHÁN RIALTAIS,

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